Flag desecration vote expected to be close

WASHINGTON—The first time the U.S. Supreme Court weighed in on desecration of the nation's flag, the subject was beer. The court said that states could outlaw flags on bottles of Stars and Stripes brew because such marketing would "degrade and cheapen" the flag.

That was 1907. Eighty-two years later, in 1989, the court concluded that the Constitution's right of free speech permitted the flag to be desecrated, even by burning it.

Majorities in both the Senate and the House of Representatives have been trying to turn back the clock ever since.

Senate Republican Leader Bill Frist of Tennessee plans a vote this week on a proposed amendment to the U.S. Constitution that would give Congress the right to outlaw flag desecration. Debate could begin as early as Monday.

The House routinely has approved the flag amendment by broad majorities, but the Senate twice has fallen short of the necessary two-thirds vote needed to send the question to the states for ratification. This year, the amendment is expected to obtain 66 of the 67 required Senate votes.

"This is the place to stop it," said Sen. Edward Kennedy, D-Mass., who believes it would harmfully limit the right to free speech. "This will be one of the most important votes we cast in this session."

Dousing flags with kerosene and setting them on fire, which became an eye-catching way of protesting the Vietnam War in the 1960s and 1970s, happens infrequently today. The pro-amendment Citizens' Flag Alliance lists only three instances of flag desecration this year, including one involving a drunk who tore two small flags from a sailor's monument in West Haven, Conn.

Meanwhile, the Gallup poll has chronicled a drop in public support for amending the Constitution to protect the flag, down from 71 percent in 1989 to 55 percent last year.

Still, the idea rubs emotions raw. All 50 states have adopted resolutions in recent years advocating a flag-protection amendment, and some polls show backing in conservative states as high as 70 percent. Amendment backers and opponents agree that the Senate is the only obstacle standing in the way of ratification by three-quarters of the states, as the Constitution requires.

"It would probably be the swiftest ratified amendment in the history of the country," said Marty Justis, executive director of the Citizens' Flag Alliance.

Some Republicans criticize Frist for pushing the amendment, which they see as more about rallying conservative voters for November's congressional elections than governance. Earlier this month, Frist held votes on two other hot-button conservative issues, outlawing gay marriage and repealing the estate tax, even though both were bound to fail.

"The House and Senate floor is about substantive work for the nation, and I think campaigns ought to be kept in the streets where they belong," said former House Republican Leader Dick Armey of Texas. "Frist seems to be going about 80 percent politics and 20 percent policy, though I would be hard pressed to find what that 20 percent is."

Republicans concede that it's highly unlikely that the Senate will pass the amendment. They say some senators who have voted for the amendment previously to avoid political backlash at home—knowing then that it wouldn't pass the Senate—would likely vote "no" if it looked like the amendment were about to pass.

Support for the amendment is bipartisan, with 14 Senate Democrats, including Democratic Leader Harry Reid of Nevada, favoring it. But there are important opponents as well, including Sen. Mitch McConnell of Kentucky, the second-ranking Republican leader in the Senate.

The Supreme Court's 1989 decision centered on a Texas protester, Gregory Lee Johnson, who burned a flag during the 1984 Republican National Convention in Dallas while other protesters chanted "America the red, white, and blue, we spit on you."

The court concluded: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Critics of the 1989 court opinion say that was a legalistic stretch typical of an overly activist judiciary.

"The ability to protect the flag is something that legislative bodies should have a right to do; when judges took that away, they overstepped," said Sen. Lindsey Graham, R-S.C., a co-sponsor of the amendment. "When you desecrate or defile the flag, that to me is a destructive act, not symbolic speech."

Kennedy said some senators fear this vote may decide elections this fall, and possibly whether Republicans or Democrats win control of the Senate.

"There are single-issue voters in a country that is evenly divided, races are evenly divided, and some are worried about the political implications of this," he said.